Navigating the Complexities of Accomplice Evidence in Criminal Trials

In a criminal trial, some of the most valuable – and most dangerous – witnesses sit on the same side of the crime as the accused. These are accomplices: people who were themselves part of the offence, yet are called to testify against their co-participants. Their insider knowledge can crack open an otherwise impenetrable case. But their motivations – a pardon, a reduced sentence, or personal vendetta – raise serious questions about how much their words can be trusted. Indian law has long grappled with this tension, and the answer it has settled on is nuanced: an accomplice’s testimony is admissible, but it must be handled with exceptional care.

Who counts as an accomplice? 🔗

The term “accomplice” has not been formally defined under Indian evidence law, but courts have filled that gap through consistent interpretation. In the landmark case of Chandan v. Emperor (1930), the Allahabad High Court described an accomplice as someone who is associated with an offender in the commission of a crime – one who knowingly and voluntarily helps or cooperates with others in carrying it out. The Supreme Court in R.K. Dalmia v. Delhi Administration tightened this further by requiring the person to be a particeps criminis – an actual partner in crime who actively participates in the act for which the accused is being tried.

Crucially, the key element is mens rea – a guilty mind combined with the intent to participate in and further the criminal act. A person acting under coercion, for instance, would not qualify as an accomplice because their participation lacks voluntariness. So a contractor who is forced to pay a bribe under threat is not an accomplice to bribery – the law recognises the difference between compulsion and complicity.

Categories of accomplices 🔗

Indian jurisprudence recognises several distinct categories based on the nature and degree of involvement. A co-accused is someone jointly charged and tried for the same offence. An approver is an accomplice who has been granted a pardon – typically conditional – in exchange for making a full and truthful disclosure against the other accused. A trap witness is someone induced by law enforcement to participate in a crime for the purpose of gathering evidence, and also falls within the definition of accomplice under evidence law. An accessory assists after the fact – by helping an offender flee or by concealing evidence – without having participated in the primary offence itself. Each of these categories carries different procedural implications, especially regarding how their testimony is evaluated and corroborated.

Legal framework: competency vs. reliability 🔗

The foundational provision on accomplice testimony under the old Indian Evidence Act, 1872 was Section 133, which declared that an accomplice is a competent witness against an accused, and that a conviction would not be illegal merely because it rested on uncorroborated accomplice testimony. However, this was immediately complicated by Illustration (b) to Section 114, which permitted the court to presume that an accomplice is unworthy of credit unless their testimony is corroborated in material particulars.

These two provisions created a well-known legal tension. Section 133 said a conviction could stand on uncorroborated testimony; Illustration (b) to Section 114 warned courts not to trust it without corroboration. The courts resolved this by treating the combination as a rule of prudence: technically legal to convict without corroboration, but unsafe in practice to do so. As the Supreme Court in Sarwan Singh v. State of Punjab clarified, while an accomplice is a competent witness, the court must still exercise extreme caution before acting on uncorroborated testimony.

The shift under the Bharatiya Sakshya Adhiniyam, 2023 🔗

The Bharatiya Sakshya Adhiniyam, 2023 (BSA), which came into force on 1 July 2024, replaced the Indian Evidence Act and introduced a significant textual change. Section 138 of the BSA now reads: an accomplice shall be a competent witness against an accused person, and a conviction is not illegal if it proceeds upon the corroborated testimony of an accomplice. Notice the difference: the IEA said a conviction was not illegal on uncorroborated testimony; the BSA says it is not illegal on corroborated testimony. This shift, recommended by the Parliamentary Standing Committee, effectively elevates what was a rule of prudence into a rule of law – corroboration is now a legal requirement, not merely a judicial preference.

Section 119, Illustration (b) of the BSA mirrors the old Illustration (b) to Section 114, reinforcing the presumption that an accomplice’s testimony should be viewed with doubt unless supported by independent evidence. Together, Sections 138 and 119(b) now work in tandem to make corroboration mandatory rather than discretionary.

Why is accomplice testimony treated with suspicion? 🔗

The caution surrounding accomplice evidence is not arbitrary – it stems from identifiable structural problems with the testimony itself. Courts and legal scholars have consistently identified three core concerns.

First, the accomplice is a tainted source. Having participated in the crime, their moral credibility is already compromised. Their testimony does not carry the same weight as that of a disinterested, law-abiding witness. Second, the accomplice has an obvious incentive to lie or exaggerate. Having betrayed their associates, they may fabricate or distort the narrative to serve the prosecution’s case – either to secure a pardon or to deflect blame from themselves. Third, an approver who has been granted pardon is, by definition, biased toward the prosecution. Their freedom depends on the conviction of others, which creates a structural conflict of interest that the court must actively guard against, as noted by courts applying the combined effect of the old Sections 133 and 114(b).

In State of Rajasthan v. Bal Veera (2014), the Supreme Court held that an accomplice will be presumed unworthy of credit unless their testimony is corroborated by other material evidence – a restatement of this long-standing judicial caution.

The two-stage test for accomplice evidence 🔗

Before a court can rely on an accomplice’s testimony, it must apply what has evolved into a well-recognised two-stage reliability test.

The first stage is the reliability test: Is the accomplice, taken as a whole, a credible witness? The court must assess their demeanour, the internal consistency of their account, and whether their narrative has the ring of truth. An approver’s testimony must clear this threshold first. As the Supreme Court has held, the very fact that an accomplice participated in the commission of the offence introduces a degree of unreliability – so reliability must be affirmatively established before proceeding further.

Only if the first stage is satisfied does the court move to the corroboration test: Is the testimony supported by independent evidence that connects the accused to the crime? Corroboration need not cover every aspect of the accomplice’s account. It must, however, go beyond confirming peripheral facts and must connect the accused to the offence in a material way. As established in the English case of R v. Baskerville – widely followed in India – corroborative evidence can be circumstantial, but it must be independent, reliable, and not vague.

What qualifies as corroboration? 🔗

Corroboration is not a fixed quantity – it varies with the facts of each case, the gravity of the offence, and the character of the accomplice. Courts have made clear that no rigid formula applies. What is required is that some independent evidence – direct or circumstantial – connects the accused to the crime without depending on the accomplice’s word alone. Critically, the testimony of one accomplice cannot be used to corroborate the testimony of another accomplice – only genuinely independent evidence qualifies. Financial records, forensic evidence, digital trails, eyewitness accounts from non-participants, and surveillance footage are all valid forms of corroboration under modern practice.

The approver: a special category within accomplices 🔗

The approver occupies the most legally significant position among accomplices. Under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), a co-accused may apply to become an approver by offering to make a full and truthful disclosure in exchange for a pardon. The Magistrate – at the Chief Judicial Magistrate level or Magistrate of the First Class – has discretion to grant this pardon, typically in cases involving sentences of seven or more years. Once pardon is granted, the approver is bound by the conditions attached to it. Failure to make a complete disclosure, or giving false evidence, can result in revocation of the pardon and prosecution for the original offence.

In Shankar v. State of Tamil Nadu, the Supreme Court clarified that when an accomplice becomes an approver, they transition entirely into a prosecution witness. In Haroon Haji Abdulla v. State of Maharashtra (1968), the Court observed that an accomplice, having betrayed associates, may mix truth with falsehood in supporting the prosecution’s case – making it difficult to separate reliable information from self-serving distortion. This is precisely why independent corroboration remains essential even after the approver passes the reliability test.

What cannot count as corroboration 🔗

Courts have been equally clear about what does not qualify as corroborating evidence. A confession by a co-accused, while considered during sentencing, is not independent evidence for the purpose of corroboration – it carries the same taint of interest as the accomplice’s own statement. Similarly, vague, general, or unverifiable statements do not satisfy the corroboration standard. The corroborating evidence must be specific, pointing to the accused’s participation in the crime.

It is also important to note that not every detail in the accomplice’s account needs corroboration. As courts have consistently held, the requirement is that corroboration exist on material particulars – those facts that directly connect the accused to the crime charged. Peripheral or background details need not be independently verified for the testimony to be acted upon.

The rule of prudence vs. the rule of law: where India stands now 🔗

Under the old Indian Evidence Act, the corroboration requirement was a rule of prudence – universal in application but technically discretionary. Under the BSA, the textual change in Section 138 has moved India firmly toward treating corroboration as a rule of law. This shift is significant: it means courts no longer have the discretion to convict solely on an accomplice’s word, regardless of how credible they might appear. Conviction on accomplice evidence is now legally valid only when that evidence is corroborated.

Critics of this change, including former judges, have raised concerns that mandatory corroboration may make it virtually impossible to prosecute conspiracy cases – offences that by their nature are planned and executed in secrecy, leaving little independent evidence behind. This view holds that the earlier framework, which balanced legal permission with judicial caution, was better equipped to deal with the realities of prosecuting organised crime. The debate underscores a fundamental tension in criminal justice: the competing demands of securing convictions in difficult cases versus protecting accused persons from potentially fabricated testimony.

What do you think? Given that accomplices testify in exchange for pardon or reduced sentences, how confident can a court realistically be in distinguishing a truthful approver from a self-serving one? And does making corroboration a rule of law under the BSA strike the right balance between convicting the guilty and protecting the innocent – or does it go too far in one direction?

References

1. https://www.drishtijudiciary.com/to-the-point/bharatiya-sakshya-adhiniyam-&-indian-evidence-act/accomplice
2. https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00049_2023-47_1719292804654&orderno=138
3. https://www.legalservicesindia.com/article/906/Accomplice-Witness-&-its-admissibility-as-Evidence.html
4. https://criminallawstudiesnluj.wordpress.com/2024/07/23/from-untrustworthy-to-trustworthy-the-bharatiya-sakshya-adhiniyams-mandatory-corroboration-of-accomplice-evidence/
5. https://www.defactojudiciary.in/notes/accomplice-in-evidence-act
6. https://www.writinglaw.com/accomplice-turned-approver/
7. https://blog.ipleaders.in/evidence-given-accomplice-not-trustworthy/
8. https://www.legalbites.in/bharatiya-Sakshya-adhiniyam/accomplice-under-bharatiya-sakshya-adhiniyam-1128606
9. https://www.livelaw.in/articles/accomplice-testimony-and-section-138-bharatiya-sakshya-adhiniyam-analysis-307532